Fordyce v Ho - [2015] NSWCA 240

Court of Appeal

Supreme Court

New South Wales

Medium Neutral Citation: Fordyce v Ho [2015] NSWCA 240
Hearing dates: 14 August 2015
Decision date: 19 August 2015
Before: Meagher JA; Gleeson JA
Decision:
1. Application for leave to appeal dismissed.
2. Order the applicants pay the respondents’ costs of the application.

Catchwords: PRACTICE AND PROCEDURE – application for leave to appeal against ex parte search order – where underlying proceedings relate to enforceability of legal costs agreements – where amount at issue in underlying proceedings not significant – where no utility in pursuit of appeal – leave to appeal refused
Legislation Cited: Civil Procedure Act 2005 (NSW), s 56
Legal Profession Act 2004 (NSW), ss 350, 361
Supreme Court Act 1970 (NSW), s 101(2)(e)
Uniform Civil Procedure Rules 2005, rr 25.20(a), 51.10(2)
Category: Procedural and other rulings
Parties: Paul Mervyn Fordyce t/as PMF Legal Trading (First Applicant)
PMF Legal Limited (Second Applicant)
Robert Ho (First Respondent)
Rhodium NSW Pty Limited (Second Respondent)
The Trading House Pty Limited (Third Respondent)
Representation:
Counsel:
PM Fordyce (in person and for the Second Applicant)
TGR Parker SC with DP Kelly (Respondents)
Solicitors:
PMF Legal Limited (Applicants)
Mills Oakley Lawyers (Respondents)

File Number(s): 2015/162369
Decision under appeal

Court or tribunal:

Supreme Court of New South Wales

Jurisdiction:

Equity

Citation:

[2015] NSWSC 544

Date of Decision:

5 May 2015

Before:

Rein J

File Number(s):

2014/288128

Judgment

THE COURT: The applicants seek leave to appeal against a search order (see Uniform Civil Procedure Rules 2005 (UCPR), Pt 25, Div 3) made ex parte on 1 October 2014 and against an order dismissing a motion to set aside that search order. The second order was made on 5 May 2015: Robert Ho v Paul Mervyn Fordyce t/as PMF Legal Trading [2015] NSWSC 544. As each of those orders was interlocutory, the applicants require leave to appeal: Supreme Court Act 1970 (NSW), s 101(2)(e). The summons seeking that leave was filed on 1 June 2015, more than six months after the search order were made. The applicants therefore also require an extension of the time for seeking leave to appeal from that order: UCPR, r 51.10(2).
The applicants are a solicitor and the corporation through which his professional services are provided. Prior to May 2014 the applicants had acted for the respondents in relation to two proceedings referred to as the BBQ King proceedings and the Guardianship Tribunal proceedings. In June 2014 the respondents applied under s 350 of the Legal Profession Act 2004 (NSW) for an assessment of the legal costs due to the applicants in relation to these proceedings. In response to that application, in August 2014 the applicants produced six costs agreements, dated between 3 April 2012 and 28 January 2014 and said to relate to the provision of those legal services. The respondents dispute having seen or received those costs agreements before that time.
On 1 October 2014 the respondents commenced proceedings in the Equity Division seeking declarations that the six propounded agreements…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

Continue reading Fordyce v Ho

Details

AGLC: Fordyce v Ho [2015] NSWCA 240
Case: [2015] NSWCA 240
Decision Date: 19 August 2015

CaseChat Overview and Summary

The applicants, Fordyce and others, sought leave to appeal against an *ex parte* search order granted to the respondents, Ho and others. The underlying proceedings concerned the enforceability of legal costs agreements, with the amount in dispute not being significant.

The primary legal issue before the Court of Appeal was whether to grant leave to appeal against the search order. This required the Court to consider the utility of pursuing such an appeal, particularly given the relatively small sum involved in the substantive dispute.

Meagher and Gleeson JJA determined that there was no utility in pursuing the appeal. They reasoned that the costs and effort involved in an appeal would likely outweigh any benefit derived from challenging the search order, especially when contrasted with the modest value of the underlying legal costs agreements. Consequently, leave to appeal was refused.

The application for leave to appeal was dismissed, and the applicants were ordered to pay the respondents’ costs of the application.

Orders

Orders of the court

1. Application for leave to appeal dismissed.

2. Order the applicants pay the respondents’ costs of the application.

Background

Background to the litigation

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Evidence

Evidence Before The Court

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Decision

Reasons for decision

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Ratio Decidendi

Legal Principle Established

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Medium Neutral Citation:	Fordyce v Ho [2015] NSWCA 240
Hearing dates:	14 August 2015
Decision date:	19 August 2015
Before:	Meagher JA; Gleeson JA
Decision:	1. Application for leave to appeal dismissed. 2. Order the applicants pay the respondents’ costs of the application.
Catchwords:	PRACTICE AND PROCEDURE – application for leave to appeal against ex parte search order – where underlying proceedings relate to enforceability of legal costs agreements – where amount at issue in underlying proceedings not significant – where no utility in pursuit of appeal – leave to appeal refused
Legislation Cited:	Civil Procedure Act 2005 (NSW), s 56 Legal Profession Act 2004 (NSW), ss 350, 361 Supreme Court Act 1970 (NSW), s 101(2)(e) Uniform Civil Procedure Rules 2005, rr 25.20(a), 51.10(2)
Category:	Procedural and other rulings
Parties:	Paul Mervyn Fordyce t/as PMF Legal Trading (First Applicant) PMF Legal Limited (Second Applicant) Robert Ho (First Respondent) Rhodium NSW Pty Limited (Second Respondent) The Trading House Pty Limited (Third Respondent)
Representation:	Counsel: PM Fordyce (in person and for the Second Applicant) TGR Parker SC with DP Kelly (Respondents) Solicitors: PMF Legal Limited (Applicants) Mills Oakley Lawyers (Respondents)
File Number(s):	2015/162369
Decision under appeal	Court or tribunal: Supreme Court of New South Wales Jurisdiction: Equity Citation: [2015] NSWSC 544 Date of Decision: 5 May 2015 Before: Rein J File Number(s): 2014/288128